Download Balancing Judicial Independence and Accountability in a

University of Idaho
From the SelectedWorks of David Pimentel
2016
Balancing Judicial Independence and
Accountability in a Transitional State: The Case of
Thailand
David Pimentel, University of Idaho
Available at: http://works.bepress.com/david_pimentel/21/
BALANCING JUDICIAL INDEPENDENCE AND
ACCOUNTABILITY IN A TRANSITIONAL STATE:
THE CASE OF THAILAND
David Pimentel*
INTRODUCTION
Judicial independence and judicial accountability have long been
viewed as in tension with each other. The assumption is that any effort to
strengthen judicial independence makes it difficult to hold judges
accountable, and that any accountability initiative undermines judicial
independence. Accordingly, much attention has been devoted to striking
the “right” balance between these two concepts, both of which are
important, but each of which can be advanced only at the expense of the
other. The debate about how these two should be balanced, however, has
often taken place without reference to specific legal cultures and traditions,
and there is compelling reason to believe that the right balance may be
different in different societies. 1
Thailand is facing particular challenges at present as a transitional state,
under martial law until April 2015, and still awaiting approval of a new
constitution. The proper role and power of the judiciary in such a state is
difficult to define and even harder to implement. But a more nuanced
understanding of the classic independence v. accountability debate may
help craft meaningful and effective solutions for Thailand.
The starting point is to understand that independence and accountability
are not ends in themselves, but means to the same end: that of fair,
impartial, and effective justice. Independence can help, primarily by
*
Associate Professor of Law, University of Idaho; former Director, Democratic
Governance and Rule of Law LL.M., Ohio Northern University. B.A., Brigham Young
University; M.A., University of California, Berkeley; J.D., Boalt Hall School of Law,
University of California, Berkeley. This paper was commissioned by, and written for the
Thailand Institute of Justice (TIJ), and was presented, in earlier form, at a TIJ-hosted
seminar in Bangkok on September 29, 2015. Special thanks to TIJ, its generous funders,
and its extremely efficient staff, including but not limited to Vipon Kititasnasorchai,
Pavitra Sakulchaimongkol, and Pai Ukrit Sornprohm, for making it possible. Thanks to
Justin Bowles for research assistance. Copyright is held by David Pimentel.
1
David Pimentel, Reframing the Independence v. Accountability Debate: Defining
Judicial Structure in Light of Judges’ Courage and Integrity, 57 CLEV. ST. L. REV. 1
(2009).
2
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
bolstering the judicial courage exercised by judges called upon to rule in
difficult cases. Accountability can help as well, primarily by bolstering the
integrity judges demonstrate in their performance on the bench. In light of
this, the structural solutions for the judiciary under a new Thai constitution
should be crafted in light of (1) the history, tradition, and culture of the
Thai judiciary, (2) the degree of courage and integrity already manifested
among Thai judges, and (3) those structures and mechanisms that can
leverage the Thai judges’ strengths and ameliorate, or at least mitigate,
their weaknesses. The future of the Thai legal system, and particularly its
prospects for the rule of law, depend on a sensitive implementation of these
considerations.
I. IMPORTANCE OF JUDICIAL INDEPENDENCE
A. Judicial independence and the rule of law
The concept of the “rule of law” was first spelled out by A.V. Dicey, a
nineteenth century constitutional theorist, who was careful to specify that
punishment for crime could come only for violating pre-existing laws and
after sentencing by regular courts, and that rights are protected by ordinary
legal processes.2 It follows that a functional court system—one that will
dispense justice according to these pre-existing laws, and following
ordinary legal processes—is essential to the rule of law. Corrupt court
systems cannot deliver justice, and independence is a necessary bulwark
against such corruption and a critical precondition for the rule of law itself.3
Put another way, if the law is to be enforced evenhandedly, if no one is
to be above the law, 4 the judges must be free to act independently in
applying the law and rendering judicial decisions. If Thailand is to have a
“government of laws and not men,”5 it needs a court system that respects
law more than it respects the power of any individual(s). Thailand’s
constitutional history, dating back to 1932, demonstrates a long-standing
commitment to democratic principles, values embraced by the Thai people
now for generations.6 And although the country has been through serious
2
JANE STROMSETH ET AL., CAN MIGHT MAKE RIGHTS?: BUILDING THE RULE OF LAW
AFTER MILITARY INTERVENTIONS 70 (2006).
3
Samuel L. Bufford, Defining the Rule of Law, 46 JUDGES’ JOURNAL 16 (2007).
4
Popular definitions of the rule of law almost always include this requirement that all
be equal before the law and that no one is “above of the law.” See, e.g., Rachel Kleinfeld,
Competing Definitions of the Rule of Law, in THOMAS CAROTHERS, ED., PROMOTING THE
RULE OF LAW ABROAD: IN SEARCH OF KNOWLEDGE, 38-39 (2006).
5
Massachusetts Constitution, Part The First, art. XXX (1780).
6
Scot Marciel, Thailand: A Democracy at Risk, Testimony Before the House
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THAILAND’S JUDICIARY
3
political upheaval in recent years, including the present struggle to establish
yet another constitution, the monarchy—with all of the moral authority it
commands in Thailand—has been a stabilizing rather than a disruptive
influence in the attempt to establish a secure and functional democratic
society. Accordingly, it is no threat to this monarchy to suggest, as Thomas
Paine did, “For as in absolute governments the King is law, so in free
countries the law ought to be king.”7 Paine was speaking at the time of the
American Revolution, and his rhetoric reflects the anti-royalist sentiment of
his society and his time, but the principle remains, that if the rule of law is
to prevail, there must be a supremacy of law, and equality before it.
The task falls to the judiciary, then, to ensure the fair and even-handed
application of the law. That requires a judiciary that is independent enough
to resist improper influence, including pressure from the politically
powerful. It requires a judiciary that exercises its authority according to
higher principles of integrity and justice.
B. Judicial behavior is the ultimate measure of independence
Judicial independence is usually defined in terms of freedom from
outside influence. Judges who face pressure, or consequences, for the
merits of their decisions will have difficulty deciding cases impartially—
the outside influence is deemed to have impinged upon their independence.
Accordingly, great efforts are made to neutralize those influences and to
insulate judges from any potential retaliation for their decisions. The aim is
to give the judges sufficient protection—e.g. structural provisions that grant
them job security (often life tenure), guarantees that their salaries will not
be reduced, provision of adequate security, etc.—that they can make
independent judgments without fear of consequences.
But such consequences and influences can never be eliminated
completely. No doubt a judge who makes a politically unpopular decision
will face social opprobrium at the very least. The judge may also damage
her prospects of elevation to a higher court. The judicial structure can do
only so much to minimize the exposure of judges to such consequences.
Committee on Foreign Affairs Subcommittee on Asia and the Pacific (June 24, 2014)
http://www.state.gov/p/eap/rls/rm/2014/06/228368.htm
(citing
Thailand’s
“democratic tradition” and urging support for “efforts to move Thailand back
towards” it.); Thailand profile – timeline, BBC (19 August 2015)
http://www.bbc.com/news/world-asia-15641745 (In 1932, “Constitutional monarchy
[was] introduced with parliamentary government.”).
7
Thomas Paine, The Writings of Thomas Paine, Vol. I (1774-1779).
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INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
Accordingly, what is critical is not so much the structures themselves,
but whether the judge can/will withstand or ignore such outside influences.
The judge needs to show judicial courage, shrugging off inappropriate
influences, and making independent judgments regardless of the
consequences to her personally. Viewed from this perspective, the “judicial
independence” structure—that attempt to minimize the consequences
judges may face for their unpopular decisions—is important only to the
extent it may embolden the judge to demonstrate judicial courage. At the
same time, a judicial system demonstrates the virtue of judicial
independence not in terms of the structural safeguards that exist to protect
judges, but by the behavior of the judges themselves. Judicial independence
is achieved only when the judges have developed a practice and tradition of
acting independently.
C. Judicial independence’s image problem
Judicial independence is not a particularly compelling rallying cry. The
public rarely takes to the streets to protest against the lack of judicial
independence. The legal community is likely to appreciate the critical role
that judicial independence plays in a functional system—the lawyers who
appear before the courts will certainly be cynical about their own work if
they perceive the judges’ decisions being influenced or controlled by
external forces, political or otherwise. There are a couple of reasons the
public is likely to frame the issue differently, however, and to feel less
sympathetic to the judicial independence cause.
First, they may not be at all happy that judges can exercise
independence to subvert the agendas of their elected leaders, which in a
democracy, should be expected to reflect the will of the majority.8 It is a
8
See e.g. U.S. President Franklin D. Roosevelt, Fireside Chat Discussing the Plan for
Reorganization of the Judiciary (Mar. 9, 1937) (“Last Thursday I described the American
form of Government as a three horse team provided by the Constitution to the American
people so that their field might be plowed. The three horses are, of course, the three
branches of government—the Congress, the Executive and the Courts. Two of the horses
are pulling in unison today; the third is not. Those who have intimated that the President of
the United States is trying to drive that team, overlook the simple fact that the President, as
Chief Executive, is himself one of the three horses. It is the American people themselves
who are in the driver’s seat. It is the American people themselves who want the furrow
plowed. It is the American people themselves who expect the third horse to pull in unison
with the other two.”); See also Frances Kahn Zemans, Centennial Reflections on Roscoe
Pound’s The Causes of Popular Dissatisfaction with the Administration of Justice Article,
48 S. TEX. L. REV. 1063, 1066 (2007) (regarding “President Roosevelt’s court-packing
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THAILAND’S JUDICIARY
5
marginalized minority, unable to implement its agenda through the political
process, that benefits from an independent judiciary. They may demand
some independence for the courts in the hope that courts will raise barriers,
or impose limits, on the political initiatives of the party in power. While the
minority’s plea for judicial independence might be rooted in its
commitment to principles of good governance, it is just as likely to be
driven by self-serving efforts to pursue its own agenda. It will almost
certainly be perceived that way. The majority in turn, aggrieved by judicial
decisions that subvert its own agenda, will brand the judges as “activist
judges” and condemn these exercises of judicial independence.9
Second, the public is likely to interpret the term “judicial
independence” to speak to the judges’ personal privileges, comforts, or
amenities. Those issues are unlikely to engender public sympathy; after all,
judges are already perceived as privileged and powerful people. But, as
U.S. District Judge John L. Kane (D. Colo.) cautioned, “We must all
understand that judicial independence is not for the protection of judges,
but for the protection of the public.”10 Otherwise, “judicial independence”
is likely to be viewed as a low priority, and more likely a problem in need
of a remedy.11 Indeed, the public, particularly a disenfranchised public, is
likely to view judges as highly entitled and perhaps overdue for a humbling
of some kind.
D. Judicial independence as a means to an end
plan … Members of the court were attacked as activist judges who were imposing their will
over the legislative and executive branches of government.”); JEFFREY ROSEN, THE MOST
DEMOCRATIC BRANCH: HOW THE COURTS SERVE AMERICA 5 (2006) (Critics of judicial
activism frequently charge that whenever a court strikes down a law, it effectively thwarts
the will of the majority that passed that law.”).
9
See, e.g., Charles Gardner Geyh, Rescuing Judicial Accountability from the Realm of
Political Rhetoric, 56 CASE W. RES. L. REV. 911, 912 (2006).
10
John L. Kane Jr, Public Perceptions of Justice: Judicial Independence and
Accountability, 17 J. NAT’L ASS’N ADMIN. L. JUDGES. (1997) available at
http://digitalcommons.pepperdine.edu/naalj/vol17/iss2/2.
11
When the Thailand Institute of Justice (TIJ) held a seminar on September 29, 2015
on Judicial Independence and Accountability, it surveyed its audience on whether they
thought the Thai judiciary needed more independence, nearly half (49.4%) responded that
they thought the judiciary already had too much independence. See Annex A. See also,
e.g., Kelly J. Varsho, In the Global Market for Justice: Who is Paying the Highest Price
for Judicial Independence? 27 N. ILL. U. L. REV. 445, 452 (2007) (“[A]n independent
judiciary is accountable to no one. People argue that there can be too much judicial
independence; since judges are government officials who exercise plenary power, they
should be accountable to the public.”).
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[22-Feb-2016
Acknowledging the potential for this misperception, some who actively
promote the independence of the judiciary have begun using different
terminology, insisting that they are working toward a judiciary that is
impartial or fair, rather than one that is independent.12 Of course, this is not
mere semantic subterfuge. Judicial independence is important only because
it is an essential precondition to the judiciary playing its proper and
meaningful role as an impartial and fair arbiter of disputes, and protector of
rights. It is a means to an end, not an end in itself. And what is the ultimate
“end’? We could call it “the rule of law,” although that hardly helps, as
there is so much dispute over what it really means. A more meaningful, and
hopefully less controversial formulation would be “fair, impartial, and
effective justice.” And it is not difficult to see why an independent
judiciary—one that can’t be swayed by political pressure, money, threats,
etc.—is essential to achieve that.
E. Independence from what/whom?
1. Independence from political influence
a. Political influence in the absence of democracy
In a society dominated by a political strong man,13 the independence of
the judiciary is particularly at risk. The authoritarian leader will insist on
being above the law, if not the law himself. It is difficult to ask, or to
expect, a judiciary to withstand such raw political power. Indeed, the
problem is likely to be far worse than simply exempting that individual
from the reach of the law. More likely the captive courts will be forced to
do the bidding of that leader—protecting his friends and political allies, and
persecuting his enemies and anyone who threatens his power.
12
See, e.g., Shirley S. Abrahamson, Keynote Address: Thorny Issues and Slippery
Slopes: Perspectives on Judicial Independence, 64 OHIO ST. L. J. 3 (2003) (recognizing
“fairness” and “impartiality” as ideals sought as the ends of judicial independence and
accountability); American Bar Association Standing Committee on Judicial Independence;
http://www.abanet.org/judind/aboutus/home.html (last visited Jan. 30, 2008); University of
Denver: Institute for the Advancement of the American Legal System,
http://www.du.edu/legalinstitute/mission.htm (last visited Jan. 30, 2008); The Justice at
Stake Campaign: A National Partnership Working for Fair and Impartial Courts,
http://www.faircourts.org/contentViewer.asp?breadCrumb=2 (last visited Jan. 30, 2008).
13
Some have characterized Thailand as one such society. See, e.g., Sebastian
Strangio, The Strongman of Siam, FOREIGN POLICY (May 21, 2015)
http://foreignpolicy.com/2015/05/21/the-new-king-of-siam-thailand-prayuth-junta/;
Rodion Ebbighausen & Gabriel Dominguez, General Prayuth: Thailand's new
strongman, DEUTSCHE WELLE (May 27, 2014) http://www.dw.com/en/generalprayuth-thailands-new-strongman/a-17665821.
22-Feb-2016]
THAILAND’S JUDICIARY
7
b. Political influence from the democratically-elected majority
At the same time, even in a democracy, there must be limits on the
authority of the majority. No doubt lawmaking is entrusted to democratic
majorities and their representatives in the legislatures, but minorities have
rights too, rights that should be protected against majoritarian authority.
The majority won’t like it, of course, as discussed above. But it is here that
the judiciary plays a critical role, and where the need for its independence
becomes so compelling.
As Alexis de Tocqueville observed, in a democratic society, the role of
the judiciary is to protect the minority from the “tyranny of the majority,”14
lest the rights of minorities be swept aside entirely. If the courts are the
protectors of unpopular minorities, it naturally follows that the democratic
majority may disapprove of a given judicial intervention. And the elected
political branches of government, reflecting the views of the electorate,
may be unhappy with the judiciary’s imposition of limits, Constitutional or
otherwise, on the majority’s ability to pursue its agenda unchecked, i.e. its
power to trample the rights of any unpopular minority. It is inevitable that
political pressure will be brought to bear against any judiciary that is filling
its proper role of protecting that minority, 15 and the judiciary must be
independent enough to withstand that pressure.
2. Independence from crime bosses or other non-governmental interests
But judicial independence goes beyond insulating judges from the
political process and political pressure. Judges may also be subject to
threats and pressure from litigants, including society’s criminal element.16
14
See generally ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA, Ch. 15 (1835).
Critics lament a lack of judicial independence, and particularly a politicized
judiciary, in Thailand today. See, e.g., Kevin Hewison, Judicial Politicization as Political
Conservatism,
HOT SPOTS, Cultural Anthropology website, (Sept. 23, 2014)
(“Constitutional court judges have sometimes declared their political neutrality, claiming
that their interventions are intended to maintain the rule of law, protect electoral
minorities, and check the power of elected politicians. However, their record denies this
and most observers concur that the judiciary is a steadfast ally of … political groups….
There is no judicial independence in Thailand, and there will not be for the foreseeable
future.”).
http://www.culanth.org/fieldsights/565-judicial-politicization-as-politicalconservatism.
16
Thailand’s judiciary appears to be vulnerable to some of these influences. In
2014, seven judges were disciplined, four of which were removed from office for
“corruption.” See Veera Prateepchaikul, Judge sackings send shockwaves across the
benches,
BANGKOK
POST
(Commentary,
Nov.
8,
2014)
15
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[22-Feb-2016
Organized crime has, historically, been quick to recognize the value of
having judges “on their side,” and has tapped its considerable expertise in
the field of extortion and bribery to influence judges in corrupt ways. 17
Otherwise honest judges have certainly been influenced by either the
generosity of the donor or by genuine fear. Judges are certainly vulnerable
to threats of blackmail, 18 personal violence, or any type of harm to the
judges’ loved ones.
Here the line between independence and accountability gets blurred. If
judges are “in the pocket” of the mob, the public is not likely to view it as a
problem of an insufficiently independent judiciary, but of an insufficiently
accountable judiciary. Nonetheless, it is a matter of improper influence;
such attempts to influence judges will always be there. Judges need to be
independent enough to be able to resist or ignore these manipulative forces
from outside of government every bit as much as they need to be
independent of political influence.
F. Institutional Independence v. Decisional Independence
It is also important to note the distinction between the independence
enjoyed by judges in their individual decisions and the independence the
judiciary as a whole enjoys from the other branches of government. The
latter may be termed “institutional independence” and usually reflects
separation of powers principles. As matter of constitutional structure, it is
important that judicial governance rest within the judiciary itself,
minimizing legislative and executive control over court operation and
administration, including staffing and budgeting.19
Institutional independence can be threatened if other branches of
government attempt to influence the judicial system in its functioning, and
this can happen despite separation of powers structures enshrined in the
http://www.bangkokpost.com/print/426077/.
17
See Abrahamson, supra note 12 at 10 (discussing how threats of physical harm
impair judicial independence); see also, generally, CHARLES R. ASHMAN, THE FINEST
JUDGES MONEY CAN BUY, AND OTHER FORMS OF JUDICIAL POLLUTION (1973)
(documenting the cases of dozens of corrupt judges); ROBERT COOLEY, WHEN
CORRUPTION WAS KING: HOW I HELP THE MOB RULE CHICAGO, THEN BROUGHT DOWN
THE OUTFIT, (2004) (recounting the historical perspective of a mob attorney turned state’s
evidence).
18
No doubt most people have embarrassing secrets they would prefer to keep
quiet. Judges, given their positions of public trust, have even greater reason than most
to care about their reputations and the respect they can command in the community.
19
See the discussion of composition of judicial councils infra at Section II.A.3.
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THAILAND’S JUDICIARY
9
constitution. The legislature, for example, is typically responsible for the
judiciary’s budget and is certainly capable of abusing that power either to
threaten the courts with budget cuts or to micro-manage its priorities and
operations through earmarked funding. 20 Legislatures can also use
lawmaking powers to change courts’ jurisdiction. Executive branch
authorities who may present a budget to the legislature, and who exercise
veto authority of legislative enactments, similarly wield power over the
judicial branch.21 depending on how judicial appointments are done—in the
U.S. both the executive and the legislature play an essential role—either of
these two branches could retaliate against the judiciary by refusing to fill
vacancies on the bench, leaving the judiciary understaffed and unable to
function effectively.22
One approach to limit the legislature’s budgetary control over the
judiciary is to guarantee the judicial appropriation in the constitution itself.
Costa Rica’s constitution, for example, provides that six percent (6%) of
the annual budget is to be allocated to its judiciary, depriving the legislature
of the power to use its power over budgets to pressure or influence the
judiciary.23 Similar provisions appear in the constitutions of Paraguay (3%)
and Venezuela (2%). 24 It does not appear that any country in Asia has
20
J. Clifford Wallace, An Essay on Independence of the Judiciary: Independence from
What and Why, 58 N.Y.U. ANN. SURV. AM. L. 241, 246 (2001) (“The legislature’s control
over the provision of financial resources to the judiciary prevents the judiciary from being
completely independent from the rest of the government.”).
21
Indeed, until 2000, the Thailand’s Ministry of Justice had control over the
judiciary’s administration, including its budget. Institute of Developing Economies, The
Judicial System in Thailand: An Outlook for a New Century, 17-19, (2001)
http://www.ide.go.jp/English/Publish/Download/Als/pdf/06.pdf.
22
There can be little doubt that refusal to fill judicial vacancies (i.e. to confirm the
President’s nominees) has been utilized in the U.S. Senate, although the motivation
usually appears to have more to do with partisan politics (frustrating the President’s efforts
to put like-minded judges on the bench) than with retaliating against or otherwise harming
the judiciary. See Timothy M. Phelps, Republican Senate accused of 'slow walking'
Obama's judicial nominees, L.A. TIMES (Oct. 2, 2015), http://www.latimes.com/la-nasenate-judges-20151002-story.html.
23
CONSTITUTION OF THE REPUBLIC OF COSTA RICA art. 177 (amended 2003) (“The
budget shall allocate to the Judicial Branch an amount of no less than six percent (6%) of
the ordinary income estimated for the fiscal year.”)
24
CONSTITUTION OF THE REPUBLIC OF PARAGUAY art. 249 (1992) (“The judicial
branch will have its own budget. . . . [in] an amount that will not be lower than 3 percent
of the central government’s budget.”); NEW CONSTITUTION OF THE BOLIVARIAN REPUBLIC
OF VENEZUELA, art. 254 (1999):
The functional, financial and administrative autonomy of the Judicial Power is
established. To this end, in the general budget of the State an annual variable
entry will be assigned to the system of justice, for its effective functioning, which
10
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
adopted such an approach, although it has been advocated for Nepal.25
Threats to the judicial branch as a whole can certainly influence
individual judges in their decisions as well. Some judges may even be
pressured by their own colleagues on the bench to avoid irritating the
legislative and executive branches, lest the entire judiciary be made to
suffer as a result. So there is potential overlap between institutional
independence and the more personal, decisional independence of the
individual judge.
However, institutional independence does not guarantee decisional
independence. If the leadership of the judiciary has a particular ideological
orientation,26 judges at lower levels may feel considerable pressure to make
their decisions conform to it. Judges who hope for career advancement,
including elevation to higher level judgeships, may be particularly
vulnerable to this type of influence. This has been cited as a difficulty in
Japan, where institutional independence is strong, but the decisional
independence of the individual judges suffers terribly from influence
coming from within the judiciary.27
But most of the focus on judicial independence is not on separation of
powers and the judicial branch’s entitlement to autonomy in the system of
checks and balances. The issue, as it concerns justice and the rule of law, is
the content of the courts’ decisions, and the independence that judges feel
to render those decisions without the interference of outside forces and
influences.
II. IMPORTANCE OF JUDICIAL ACCOUNTABILITY
The opposite side of the coin is judicial accountability. It is not enough
for judges to be independent. Freeing them from outside influence may not
will not be less than two per cent of the national ordinary budget, [and] which
cannot be reduced or modified without prior authorization of the National
Assembly.
25
David Pimentel, Constitutional Concepts for the Rule of Law: A Vision for the PostMonarchy Judiciary in Nepal, 9 WASH. U. GLOBAL STUD. L. REV. 283, 311 (2010)
(quoting Dr. Ram Krishna Timalsena, Registrar of the Supreme Court of Nepal).
26
This was an issue in Turkey until a few years ago. See discussion infra at notes 7779.
27
David M. O’Brien & Yasuo Ohkoshi, Stifling Judicial Independence from Within:
The Japanese Judiciary, in JUDICIAL INDEPENDENCE IN THE AGE OF DEMOCRACY:
CRITICAL PERSPECTIVES FROM AROUND THE WORLD 37 (Peter H. Russell & David M.
O’Brien eds., 2001).
22-Feb-2016]
THAILAND’S JUDICIARY
11
be enough to ensure “fair, impartial, and effective justice.” The judge must
also pursue her responsibilities with at least a minimum degree of integrity.
Indeed, judicial independence is supposed to protect the judge from
personal consequences that come from making an unpopular decision, 28
thereby freeing the judge from fear, and enabling her to rule on the merits
of the case. By insulating the judge from consequences for her decision, we
free her to do the right thing without fear of reprisal. Of course, protecting
a judge from consequences for her decisions may just as easily free her to
do the wrong thing without fear of sanction.
The important value, therefore, is not so much judicial accountability as
judicial integrity. 29 We demand accountability because we believe it is
necessary to persuade judges to resist the temptation to engage in
corruption. Indeed, if the ultimate goal is “fair, impartial, and effective
justice,” judicial accountability is important only to the extent that it
persuades judges to avoid bad behavior, or effects the removal of judges
who indulge in it. If corruption or other judicial misconduct is not a
problem, then accountability—i.e. a mechanism for disciplining errant
judges—serves little purpose. Rather than worrying about how best to
impose judicial accountability, we should focus on how best to promote
judicial integrity.
Of course, judicial accountability cannot be so easily dismissed.
Corrupt judges do exist, and there has to be some way of removing them
from the bench. Moreover, the public may need to be reassured that there is
a means of disciplining and removing judges. The specter of a judge who is
entirely untouchable, who enjoys impunity for any and all of her judicial
actions—embodying the Platonic ideal of judicial independence—would
likely spark outrage from the public and undermine confidence in the
judiciary overall. Accordingly, it is not surprising that judicial
accountability, like judicial independence, has been recognized as a
bulwark of the rule of law.30
A. Accountable to whom?
However, creating an accountability mechanism inevitably creates a
28
One might also argue that judicial independence is compromised not only when the
judge is intimidated into avoiding an unpopular outcome in the case, but also when a judge
is aware that personal benefits (promotion, etc.) inure to the judge who secures a popular
outcome in a case.
29
Pimentel, supra note 1.
30
See Bufford, supra note 3.
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INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
dilemma. Whoever has the power to discipline or remove judges also has
the power to influence them. The creation of accountability, the very
possibility of discipline, therefore, necessarily undermines the judge’s
independence. Judges who have reason to fear the disciplinary authority
will necessarily be reluctant to render decisions unpopular with that
authority.
1. Administering judicial discipline within the judiciary
The question then, is who can be trusted with the power to discipline
and remove judges? The easier question may be who should not be
entrusted with this authority: anyone with a political agenda. Routine
judicial discipline, therefore, should probably be carried out entirely within
the judicial branch, by fellow judges who already enjoy some measure of
judicial independence. Judges may have great incentive to police their own
institution and drum “bad apples” out of the judiciary altogether. Any
corruption tolerated within the judiciary, or perception thereof, harms
everyone, as the legitimacy of the judiciary is undermined.
Because the judiciary is the non-political branch of government, this
will keep judicial discipline one step removed from political influence.
Partisan agendas seem unlikely to dominate in a disciplinary regime
implemented by non-partisan judges. 31 Moreover, every judge on the
disciplinary panel is keenly aware of the importance of judicial
independence—as someone who enjoys it and relies upon it—and will
carry out disciplinary proceedings with particular sensitivity to its impact
on judicial independence.
2.
Keeping judicial discipline away from majoritarian politics
Of course, it is tempting to suggest that judges should be accountable to
the people, to the populace that they serve. This thinking has prompted
many states in the United States to adopt systems of electing judges by
popular vote; it allows the voters to remove a judge who has lost their
confidence. The Maoists in Nepal advocated having the judiciary governed
by a special committee of the parliament, a committee of elected officials
who, as members of parliament, represent the people who elected them to
31
Placing such power within the judiciary will cannot guarantee that it will be beyond
the reach of politics, however. See, e.g., O’Brien & Ohkoshi, supra note 27 (observing
how judges in Japan suffer from pressure to conform to the preferred ideology of the
judiciary). But the judiciary is a better place to center the disciplinary power as it is
usually at least one step removed from majoritarian politics.
22-Feb-2016]
THAILAND’S JUDICIARY
13
their seats32. This proposal was justified on the ground that judges should
be “accountable to the people.”33
The problem with this, of course, is that it makes the judiciary
accountable to majoritarian politics, and effectively undermines the ability
of the judiciary to perform its constitutional role discussed above: “to
protect the minority from the tyranny of the majority.”34 Courts need to be
able to give constitutional protection to unpopular parties, and should not
be subject to the shifting winds of politics. Putting the judiciary under the
thumb of the legislature, or even the voting public, can only politicize the
judiciary, and make it difficult for judges to give due weight to the rights of
those who, due to their status as a political minority, are outside the circles
of power and influence.
Selecting judges by popular election, which looks attractive from some
perspectives—including the ease of removing a judge widely known to be
corrupt 35 —is a particularly problematic approach to accountability for
other reasons as well. Charles Geyh documents thoroughly the problems
with judicial elections in his article Why Judicial Elections Stink.36 Among
his concerns are (1) the fact that public is ill-informed about judicial
candidates, and (2) the fact that any attempt to run a campaign—which
might better inform the voting public—requires the unseemly solicitation
of campaign contributions.37 Giving money to judges (or to judges’ election
campaigns) creates terrible appearances at the very least,38 and introduces a
32
David Pimentel, Judicial Independence at the Crossroads: Grappling with Ideology
and History in the New Nepali Constitution, 21 IND. INT’L & COMP. L. REV. 207 (2011);
published simultaneously in the sub-continent at 5 INDIAN J. CONST. L. 77 (2011).
33
Id.
34
See discussion supra at note 14.
35
In the United States, Judge Harry Claiborne continued to collect his salary as a
federal judge even after he was convicted of felony tax evasion and sent to prison. The
mechanism to remove him from office—impeachment by the full House of
Representatives, and then trial before the U.S. Senate—was sufficiently cumbersome that
it took considerable time to force his removal from office. MARY L. VOLCANSEK, JUDICIAL
IMPEACHMENT: NONE CALLED FOR JUSTICE, 19 et seq. (1993).
36
Charles Gardner Geyh, Why Judicial Elections Stink, 64 OHIO ST. L.J. 43, 54-55
(2003).
37
Id.
38
See, e.g., Caperton v. A. T. Massey Coal Co., 129 S. Ct. 2252, 2257 (2009).
It is worth noting that the U.S. Supreme Court recently considered a ruling [in
the Caperton case] of the Supreme Court of West Virginia, after a litigant spent
$3 million in campaign contributions to get a more sympathetic justice onto that
court. The campaign was successful, and the newly elected judge then cast the
deciding vote to reverse a $50-million judgment against the campaign
contributor. The U.S. Supreme Court ruled that the newly elected justice should
14
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
powerful corrupting influence. Finally, judges seeking election (or reelection) may be tempted to make promises (or issue rulings) that pander to
popular sentiment, at the expense of justice in the individual case.
3. Establishing a special disciplinary body within the judiciary
As already suggested, the best approach to policing and disciplining
judges is to keep it inside the judiciary, carried out by a disciplinary panel
or committee composed of fellow judges. This is consistent with principles
of institutional independence, and minimizes the potential for politicization
of the judiciary.
The composition of the body that oversees judicial discipline—or
indeed the body that oversees an independent judiciary—is a matter of
particular concern if judicial independence is to be preserved. 39 The
emerging consensus is that judiciaries are best governed by a judicial
council composed mostly of judges.40 The Universal Charter of the Judge
provides that “judicial administration and disciplinary action should be
carried out by independent bodies, that include substantial judicial
representation.”41 The Palermo Declaration endorses a “Supreme Council
have recused himself from the case based, if nothing else, on the problematic
perceptions. Nonetheless, it was a close (5-4) decision, which raises very serious
concerns about the integrity of the judicial system when the judgeships
themselves are subject to popular vote.
David Pimentel, Constitutional Concepts for the Rule of Law: A Vision for the PostMonarchy Judiciary in Nepal, 9 WASH. U. GLOB. STUD. L. REV. 283, 28589 (2010)
39
A more thorough discussion of judicial councils can be found at Pimentel,
Constitutional Concepts, id., at 94-111.
40
Nuno Garoupa & Tom Ginsburg, Guarding the Guardians: Judicial Councils and
Judicial Independence, 57 AM. J. COMP. L. 103, 104 (2009). In a recent count, an
estimated sixty percent of the world’s judiciaries were governed by such councils, up from
a mere ten percent at the end of the 1970s. Id. at 105. The mere existence of a judicial
council guarantees little, of course. Judicial councils “may serve more as a barrier than as
an avenue to judicial independence and accountability, particularly in countries where
corruption is systemic or the judiciary is controlled by the executive.” VIOLAINE
AUTHEMAN & SANDRA ELENA, GLOBAL BEST PRACTICES: JUDICIAL COUNCILS, LESSONS
LEARNED FROM EUROPE AND LATIN AMERICA, (Keith Henderson ed., 2004), available at
http://www.ifes.org/publication/eae6b5d089d0b287174df2742875b515/WhitePaper_2_FI
NAL.pdf.
41
Universal Charter of the Judge, art. 11 (1999) available at
http://www2.fjc.gov/sites/default/files/2015/Universal%20Charter%20of%20the%20Judg
e.pdf. The Charter has been approved by the member associations of the International
Association of Judges and was unanimously approved by the delegates attending the
meeting of the Central Council of the International Association of Judges in Taipei,
Taiwan on November 17, 1999. Id. at Preamble
22-Feb-2016]
THAILAND’S JUDICIARY
15
of Magistrates” be “entrusted with the administration and discipline of the
judiciary” in order to guarantee the independence of the judges. 42 The
Beijing Statement of Principles of the Independence of the Judiciary (the
“Beijing Principles”) suggest that such a council “should include
representatives [of] the higher Judiciary and the independent legal
profession as a means of ensuring that judicial competence, integrity and
independence are maintained.”43 The Council of Europe has recommended
that “[i]n order to safeguard its independence, rules should ensure that, for
instance, its members are selected by the judiciary and that the authority
decides itself on its procedural rules.” 44 The European Charter on the
Statute for Judges envisages “an authority independent of the executive and
legislative powers within which at least one half of those who sit are judges
elected by their peers following methods guaranteeing the widest
representation of the judiciary.”45
42
The Palermo Declaration is a draft additional protocol to the European Convention
on Human Rights, articulating a model for the elements of a judiciary statute, which calls
for the creation of a “Supreme Council of Magistrates.” Elements of a European Statute
on the Judiciary, Palermo Declaration, § 3.1 (1993) (issued by the European Association
of Magistrates for Democracy and Freedoms) [hereinafter Palermo Declaration], available
at http://medel.bugiweb.com/usr/Palermo.pdf.
43
Beijing Statement of Principles of the Independence of the Judiciary in the
LAWASIA
Region,
art.
15
(amended
1997),
available
at
http://www.asianlii.org/asia/other/CCJAPRes/1995/ 1.html.
The Beijing Statement of Principles of the Independence of the Judiciary
finds its origins in 1982 in a statement of principles formulated by the Law
Association for Asia and the Pacific (LAWASIA) Human Rights Standing
Committee and a small number of Chief Justices and other Judges at a meeting
in Tokyo (“the Tokyo Principles”). The decision to formulate the current
Statement was made at the 4th Conference of Chief Justices of Asia and the
Pacific in Perth, Western Australia in 1991. . . . [A] first draft . . . was presented
to the 5th Conference in Colombo, Sri Lanka, in 1993. In light of comments
received at that conference and subsequently, and following further
consideration at the conference in Beijing in August 1995, the Statement of
Principles was adopted by the Chief Justices from 20 countries in the Asia
Pacific. A revised version of the Statement . . . was adopted in its final form at
the 7th Conference of the Chief Justices in Manila in August 1997. The
Statement has now been signed and subscribed to by 32 countries in the Asia
Pacific region.
David K. Malcolm, Foreword to Beijing Statement of Principles of the Independence of
the Judiciary in the LAWASIA Region (amended 1997).
44
Council Recommendation No. R(94) 12 of 13 Oct. 1994, principle I, § 2 (c),
available
at
http://www.coe.int/t/e/legal_affairs/legal_cooperation/administrative_law_and_justice/texts_&_documents/Conv_Rec_Res/Recomme
ndation(94)12.asp.
45
European Charter on the Statute for Judges, art. 1.3 (1998) (drafted by the Council
of
Europe),
available
at
http://www.coe.int/t/e/legal_affairs/legal_cooperation/legal_professionals/ judges/instruments_and_documents/charte%20eng.pdf
16
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
Diversified membership can help assure the judicial council’s
independence. When lower court judges are represented on the council, and
elected by their peers, those members of the council will have a different
constituency than the Supreme Court judge(s) who may sit beside them on
the council. It may also be advisable for the council to have representation
from different geographical regions.46 If the independent legal profession
has representatives on the council, as suggested by the Beijing Principles,47
they too bring a distinct perspective, and are accountable to a different
constituency. The diverse constituencies served by a diverse membership
on the council is a safeguard against any one person or political institution
gaining too much control over the judiciary, and thereby undermining its
independence.
Brazil has taken this approach in a 2004 constitutional amendment. 48 Its
judicial council now consists of nine judges, two prosecutors, two lawyers,
and two lay persons appointed by the legislature.49
In any case, routine judicial discipline should normally be administered
by a judicial body, operating inside the judiciary under the auspices of an
independent judicial council. This provides the best hope of avoiding
politicization of judicial accountability, and the consequent threat to
judicial independence.
B. Accountable for what?
Whoever has the power to discipline judges needs carefully drawn
guidelines for what constitutes grounds for discipline. The threat of
discipline will necessarily lurk in the back of the mind of any judge faced
with a controversial or politically-charged case. Could the decision itself
prompt disciplinary proceedings against the judge? If so, or if the judge
perceives it to be so, the accountability mechanism will deal a serious blow
46
In the U.S. federal courts, the governing body of the judiciary, known as the
Judicial Conference of the United States, is composed of approximately half trial judges
and half appellate judges, one of each from all 13 circuits around the country. 28 U.S.C.
§§ 331, 332(a)–(b) (2006). This gives significant representation to lower court judges and
to all geographic regions, each of which may have distinct needs or concerns.
47
Supra note 43.
48
Garoupa & Ginsburg, supra note 40, at 111 n.35.
49
Id. Brazil’s approach helps diversify the council’s membership, however, allowing
the legislature to appoint two members of the council is inconsistent with separation of
powers principles.
22-Feb-2016]
THAILAND’S JUDICIARY
17
to judicial independence. Even in the United States, a single decision by a
judge may prompt calls for that judge’s impeachment and removal.50
For this reason, the federal courts of the United States have made it
clear that the merits of a court decision can never be the basis for judicial
misconduct proceedings. The controlling statute calls for dismissal of a
misconduct complaint “directly related to the merits of a decision or
procedural ruling.” 51 The accompanying Rules for Judicial-Conduct and
Judicial Disability Proceedings, include in the Comment to Rule 3, the
following explanation:
Rule 3(h)(3)(A) tracks the Act … in excluding from the definition of
misconduct allegations “[d]irectly related to the merits of a decision or
procedural ruling.” This exclusion preserves the independence of judges
in the exercise of judicial power by ensuring that the complaint procedure
is not used to collaterally attack the substance of a judge’s ruling.52
The rules and commentary make it clear that anyone unhappy with the
merits of a judge’s decision in their case can seek relief only by way of the
appellate process. But the decision itself, or its merits, is not, and cannot
be, construed in any way as judicial misconduct.53
See the discussion of the public reaction to Judge Harold Baer’s controversial
decision to suppress evidence in a drug case, including condemnations from a wide array
of powerful public officials, including the White House. John Q. Barrett. Introduction: The
Voices and Groups that Will Preserve (What We Can Presence of) Judicial Independence,
12 ST. JOHN’S J. LEGAL COMMENT. I, 2 n.4, (1996). Members of Congress, who had the
power to remove Judge Baer, openly discussed the possibility of impeachment, id. at 3 n.
6, but in the end, Judge Baer changed his decision and the matter was dropped. The
change of the decision is itself cause for concern, as it suggests that the judge may have
succumbed to this pressure and to these threats.
51
28 U.S.C. § 352(b)(1)(A)(ii).
52
Rules for Judicial-Conduct and Judicial Disability Proceedings (Amended Sept. 17,
2015) available for download at http://www.uscourts.gov/judges-judgeships/judicialconduct-disability (last visited December 5, 2015).
53
The Rules go on to explain the types of conduct that could be actionable (would not
be deemed “merits-related”) notwithstanding their close association with the judges’
disposition of the case:
Conversely, an allegation—however unsupported—that a judge conspired with a
prosecutor to make a particular ruling is not merits-related, even though it “relates” to
a ruling in a colloquial sense. Such an allegation attacks the propriety of conspiring
with the prosecutor and goes beyond a challenge to the correctness—“the merits”—of
the ruling itself. An allegation that a judge ruled against the complainant because the
complainant is a member of a particular racial or ethnic group, or because the judge
dislikes the complainant personally, is also not merits-related. Such an allegation
attacks the propriety of arriving at rulings with an illicit or improper motive.
Similarly, an allegation that a judge used an inappropriate term to refer to a class of
50
18
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
III. RECONCILING/BALANCING INDEPENDENCE AND ACCOUNTABILITY
Recognizing that there is tension between the concept of judicial
independence and judicial accountability, Thailand must find an
appropriate balance in its pursuit of both. What type of judicial structures
need to be in place to ensure that an optimal balance is struck? The issue is
a timely one as Thailand considers adoption of a new constitution.
As I have argued elsewhere, 54 the structures that support judicial
independence are blunt instruments in pursuing what really matters.
Structural protections for judges, designed to insulate them from outside
influence, serve primarily to bolster their judicial courage to ignore such
influences, but that courage is the important thing. Similarly, judicial
accountability mechanisms are only a surrogate for what really matters: the
integrity of the judges themselves. Structural mechanisms for disciplining
judges are meaningful only if they succeed in inducing ethical behavior
among judges, and/or if they are effective in removing the miscreants from
the bench.
A. Independence and Accountability: Why the two concepts don’t actually
conflict
The perceived conflict between independence and accountability is
really nothing more than a tension between the means typically employed
to foster each. Surely those approaches need to be balanced. But the factors
that really matter, judicial courage (to act independently, regardless of the
consequences) and judicial integrity (to act ethically, regardless of whether
anyone is watching) are fully compatible and mutually reinforcing. Indeed,
it often takes serious courage to act ethically.
While the judiciary can be structured with protections for judges to
encourage independence, and with disciplinary mechanisms to hold them
accountable, the structure is not going to turn bad judges into good ones.
Her performance on the bench may be influenced to some degree by the
judiciary’s constitutional structure, but that performance will be dictated far
people is not merits-related even if the judge used it on the bench or in an opinion; the
correctness of the judge’s rulings is not at stake. An allegation that a judge treated
litigants, attorneys, or others in a demonstrably egregious and hostile manner while
on the bench is also not merits-related.
Id.
54
Pimentel, supra note 1.
22-Feb-2016]
THAILAND’S JUDICIARY
19
more by the judges’ initial endowment of courage and integrity than by any
mechanism for protecting or punishing the judge.
B. Decisional Independence and Accountability: Finding the right judges
This suggests that judicial selection—getting the right people on the
bench in the first place—may be the most important priority in the effort to
create an independent and accountable judiciary, one that will inspire
confidence and promote the rule of law. Perhaps the focus on the
“independence v. accountability balance” is misplaced because what really
matters, what has a far great impact than anything we can do to foster
independence or hold judges accountable, is getting the right judges in the
first place: judges with the courage and integrity to do the job right. It also
suggests that judges who lack these qualities don’t belong on the bench.
C. Decisional Independence and Accountability: Finding the right
structures
As for what balance the structure should strike—how much it should
favor independence protections, and how much it should favor
accountability mechanisms—the appropriate balance will be different in
every society, responding to the degree of courage and integrity already
demonstrated by that country’s judges. This can be demonstrated
graphically.
Because every judge on the bench carries some endowment of courage
and integrity, every judge could be plotted on the graph below, with their
placement dictated by those two variables. The area on the graph can then
be roughly divided into four quadrants, with the quadrants on the right side
including those judges with high levels of courage, and with the quadrants
at the top including judges with high levels of integrity.
20
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
Fig. 1 – Plotting Judicial Integrity Against Judicial Courage 55
Quadrant A (in Fig. 1) includes our “heroes,” the judges who exhibit
both courage and integrity. Quadrant B includes judges with good
intentions, judges who would like to do the right thing, but may be fearful
or easily intimidated. Quadrant C includes judges with neither backbone
nor ethics, easily corrupted. And Quadrant D includes the worst lot of all:
judges with little integrity but with high levels of courage, fearlessly
pursuing their own corrupt agenda. These “monsters” cannot be intimidated
(too much courage) and therefore cannot be reformed with threats of
discipline.56
Consider, then, what the impact will be if a stronger accountability
regime is implemented. The judges who can be influenced are likely to
make greater efforts to avoid corruption, as they fear detection and
discipline. Figure 2 demonstrates that it will exert upward pressure on the
judges in Quadrants B and C, the ones who can be easily influenced, as
shown in Figure 2. Note that the judges in Quadrant D are unlikely to be
affected; their high level of courage is likely to blunt the impact that fear of
discipline has on their more timid colleagues. High courage judges are
55
Pimentel, supra note 1.
Id.; JOHN T. NOONAN, JR. & KENNETH I. WINSTON THE RESPONSIBLE JUDGE:
READINGS IN JUDICIAL ETHICS 35-47 (1993) (coining the word “Monster” for a thoroughly
corrupt judge).
56
22-Feb-2016]
THAILAND’S JUDICIARY
21
unlikely to be intimidated or influenced; they will follow their own
compass without fear of consequences.
Fig. 2 – The impact of a judicial discipline regime
Consider instead what might happen if a new system of protections for
judges is adopted, a system designed to strengthen their independence by
insulating them from consequences for their actions. This will place
rightward pressure on the judges in Quadrants B and C, emboldening them,
and allowing them to exercise more courage. The impact is depicted in
Figure 3 below:
22
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
Fig. 3 – Impact of strengthened structural protections for judges
This impact is very positive for the judges in Quadrant B, but if the bulk of
the judges in this judiciary have low levels of integrity (and are in the
bottom of the graph), the grant of additional independence will do more
harm than good. It will take corruptible judges and turn them into monsters.
The upshot of this analysis, of course, is to illustrate that independence
and accountability structures have to be balanced in a way that is very
specific to the state of the judiciary in a given society. Bolstered
independence can be a great reform, but only if there is already a high level
of integrity in the system. If the level of courage is high, a strengthened
accountability regime may have little impact in terms of reforming the
sitting judges. In such a scenario, the disciplinary regime must focus on
actually removing the “monsters,” because they have little prospect of ever
being rehabilitated into proper and effective judges.
It is not clear where Thailand’s judges are on this graph, to the extent
we can generalize about them at all. But there are some indications, set
forth below.
IV. CHALLENGES FOR THAILAND IN PARTICULAR
22-Feb-2016]
THAILAND’S JUDICIARY
23
A. Constitutional Transition Presently Underway
Thailand is in a state of transition. Since the National Council for Peace
and Order seized control of the state in May 2014 and revoked the 2007
Constitution, the country has been in constitutional crisis. A Constitutional
Court continues to exist, and other public entities and offices appear to be
functioning effectively—remarkably so, given the lack of a constitutional
order at present—but the society is not grounded in a firm legal foundation.
The lack of a foundation in law would presumably make it more difficult
for judges to stand on principle, resisting the pressures that they
undoubtedly face. Indeed, without a constitution to set forth the principles
judges should adhere to, judges may have nothing at all to stand on in their
efforts to resist improper influence (from any source) in their adjudicatory
role.
Originally, the military-controlled government had promised a new
constitution almost immediately, and elections by October 2015, 57
however, the Constitutional Drafting Committee was unable to complete
and circulate a draft until Spring 2015.58 The draft was widely criticized
and debated, with some going so far as to condemn it as “a step back” that
“deprives people of the rights they earlier enjoyed,” and would “give
unlimited power to th[e] government.” 59 Whether or not these criticisms
were fair, the National Reform Council nonetheless rejected the draft 135105 on September 6, 2015, which will result in even greater delays in the
return to democracy. 60 Indeed it appears that even if a new charter is
approved in the near future, it will be 2017 before elections can be held.61
In the meantime, the courts are adrift, as they lack defined
57
Thai army promises elections in October 2015, BBC (June 28, 2014)
http://www.bbc.com/news/world-asia-28069578.
58
Miles Kupa, Thailand: a new constitution for a new kind of democracy? The
Strategist
(Australian
Strategic
Policy
Institute,
May
4,
2015)
http://www.aspistrategist.org.au/thailand-a-new-constitution-for-a-new-kind-ofdemocracy/.
59
Doug Bandow, Thailand Suffers as Military Plans to Extend Control: Junta
Delivers
Oppression,
not
Happiness,
Forbes,
(Sept.
1
2015),
http://www.forbes.com/sites/dougbandow/2015/09/01/thailand-suffers-as-military-plansto-extend-control-junta-delivers-oppression-not-happiness/.
60
Grant Peck and Hrvoje Hranjski, Thailand’s military-installed legislature rejects
draft of constitution, delaying elections, STAR TRIBUNE (Sept. 6, 2015),
http://www.startribune.com/thailand-s-army-backed-council-rejects-charter-delayspolls/324878641/.
61
Id.
24
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
constitutional powers.62 The government has been criticized for abuse of
power and denial of human rights—it has been accused of claiming “the
power to close down the media, arrest people, [and] order for people to be
shot.” 63 Under normal circumstances, the checks and balances of a
constitutional democracy would empower the judiciary to rein in any such
abuses of citizens’ human and legal rights. the courts’ practical ability to do
so would depend in large part on its independence from the control of that
government. But without a constitutional basis for the underlying human
rights, the courts may be powerless to assert themselves or otherwise to act
independently on such issues.
B. Perceptions of the Rule of Law
Indeed, it appears that public confidence in the courts has been
declining in recent years. The World Justice Project, which conducts
surveys of perceptions of legal systems around the world has documented a
steady decline in both Access to Civil Justice and Effectiveness of Criminal
Justice in Thailand over the past five years.64 The cumulative effect of the
decline is significant as, on a scale of 0 to 1.0, Access to Civil Justice fell
by 35%, from .60 to .39, before rebounding in 2015 to .46.65 Even with that
late rebound, which reflects positively on the current government (which
seized power in 2014), the overall decline is still almost one fourth.
Criminal justice effectiveness, however, continued its decline at an
unslackened pace after the coup, and has already fallen by 40%, from .71 to
.43 (See Figure 4 below).
To put these numbers in context, Thailand’s 2010 rating among
62
Martial law was lifted on April 1, 2015. Law to replace it did little to reassure
critics that there are any meaningful checks on the power of the military government now
in control of Thailand. Kupa, supra note 58.
63
Trickery and False Promises in Thailand (Editorial), N.Y. TIMES (April 10, 2015),
http://www.nytimes.com/2015/04/11/opinion/trickery-and-false-promises-inthailand.html?_r=0
64
Clearly the blame for this five-year decline cannot be laid solely at the feet of the
military government now in power, which has ruled for less than two years. Indeed, as
noted infra, the rating for Access to Civil Justice has rebounded slightly since the coup.
65
World Justice Project Index Reports, 2010-2015. http://worldjusticeproject.org/ruleof-law-index,
http://worldjusticeproject.org/sites/default/files/files/wjp_rule_of_law_index_2014_report.
pdf,
http://worldjusticeproject.org/sites/default/files/WJP_Index_Report_2012.pdf,
http://worldjusticeproject.org/sites/default/files/WJP_Rule_of_Law_Index_2011_Report.p
df,
http://worldjusticeproject.org/sites/default/files/WJP_Rule_of_Law_Index_2010_Report.p
df.
22-Feb-2016]
THAILAND’S JUDICIARY
25
countries classified as Lower-Middle Income States, was in the area of
Civil Justice second only Colombia, and for Criminal Justice, first. 66
Among East Asia & Pacific States, Thailand was fifth in both categories,
behind the same four High Income States: Singapore, South Korea,
Australia and Japan (all High Income States). 67 Worldwide in 2010, it
ranked 16th and 13th respectively in those two categories. 68 By 2015,
Thailand had fallen dramatically in WJP rankings: In Civil Justice, it fell
from 2nd to 26th in its income group, and from 5th to 10th in its region.69 In
Criminal Justice, it fell from 1st to 15th in its income group, and from 5th to
10th in its region. 70 Worldwide, over the five years from 2010 to 2015, it
fell from 16th to 74th, and from 13th to 53rd respectively in those two
categories. 71 Of course, the change in rankings may be misleading, as the
decline may represent other countries’ improvement as much as Thailand’s
decline.
Fig. 4 – WJP ratings for the Thai Judiciary 2010-15
Other categories examined by the World Justice Project (WJP) give
mixed messages. WJP’s data reveals that the degree to which criminal
courts are free from improper influence from the government has declined
66
Id. at 98, 100 (2010 Report).
Id. at 98, 100 (2010 Report).
68
Id. at 98, 100 (2010 Report).
69
Id. at 145 (2015 Report).
70
Id. at 145 (2015 Report).
71
Id. at 145 (2015 Report).
67
26
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
dramatically in the last year, posing a direct threat to the independence of
the judiciary. The measure of freedom from improper government
influence in criminal courts declined from .52 to .36 (over 30%) in a single
year, while perceptions of corruption also worsened, although not as
dramatically.72 The good news is again on the civil side, where perceptions
both on freedom from improper influence, and on corruption showed a
corresponding improvement.73 These changes are illustrated in Figure 5
below.
THAILAND - World Justice Project
Judicial Independence 2014-15
0.7
0.6
0.5
0.4
0.3
0.2
0.1
0
CIVIL - No corruption
CIVIL - No govt.
influence
2014
CRIMINAL - No
corruption
CRIMINAL - No govt.
influence
2015
Fig. 5 – WJP ratings for the Thai Judiciary 2014-15
The decline in judicial independence that we see on the criminal side is
exactly what we would expect from the uncertain state of affairs, and the
fact the country is going through a constitution-less transition. The fact that
civil justice appears to be improving is surprising, but certainly a cause for
hope, that the judges—at least on the civil side—may be asserting both
their integrity and courage, maintaining independence and the rule of law
despite the political upheaval.
C. Informal survey results
Participants in the September 29, 2015 Seminar hosted in Bangkok by
72
Id. WJP’s measure of corruption in the criminal courts declined 11% from .65 to
.58.
73
Id. Freedom from corruption increased from .62 to .66, and freedom from improper
government influence increased from .35 to .47.
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THAILAND’S JUDICIARY
27
the Thailand Institute of Justice, which included over 80 interested persons,
had a chance to weigh in with their own perceptions, using anonymous
“clickers.” The results, all of which are reported in Annex A, are a little
hard to interpret—it was not, after all, a representative sample, or a
scientifically controlled survey—but they are worth sharing for what they
do reveal. About half the participants were employed in the public sector
(courts, Office of the Attorney General, Ministry of Justice, and other
government agencies). The remainder of the group included representatives
of non-governmental organizations, students, professors, and other
members of the public. The one thing that they all had in common was
sufficient interest in the issue of judicial independence and accountability
to attend the seminar.
Nearly half (49.4%) of the respondents felt that the Thai judiciary has
too much independence, with 41% saying that the courts enjoy an
appropriate level of independence. This is a curious result, given that in the
very next question, 34% indicated that the most serious problem the Thai
judiciary faces is intervention by political forces (19.5%) or other special
interests (14.6%). Such interference with judicial function is, by definition,
a problem of inadequate independence. But the perception that there is too
much independence is consistent with the response to a later question
showing that about half (51.1%) felt that there was inadequate
accountability, “because the Thai judiciary seems untouchable these
days.”74
The “too much independence” response may be explained, perhaps, by
the fact that almost half (48.2%) felt that the judiciary is out of touch with
the people and do not understand how ordinary people feel. This degree of
disconnectedness may explain the sense that the judiciary is too
independent. Nonetheless, a majority felt that a good system of
accountability would enhance the fairness and neutrality of the judiciary
(54% saying “definitely yes” and 19% agreeing “maybe a little”).75
Few participants saw a serious conflict between judicial independence
74
Annex A.
In the experience of the author, doing judicial reform in various countries around
the world, it is common for people frustrated with an underperforming judiciary to wish
for stronger accountability mechanisms to police the judiciary. This notion is appealing in
the abstract, but gets far more complicated when decisions have to be made about who will
be empowered to police the judiciary. As discussed supra, it is enormously difficult to
establish a body that can be trusted with such a task; obviously if that power is wielded by
a political strongman, or a politically charged body, or anyone vulnerable to corruption,
the accountability mechanism may accomplish very little indeed.
75
28
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
and accountability, with almost three quarters (73.5%) saying that it is
possible to strike an appropriate balance between the two.
There was general concern among the participants (74.5% of them
highlighting it) that giving judges broad authority to punish contempt of
court may stifle criticism of the courts, and make them less accountable.
Almost all of the participants (93.1%) acknowledged that the Supreme
Court is capable of making mistakes, although it is hard to read too much
into that statistic. It might indicate a lack of confidence in the Court if the
question had not been phrased to emphasize that “nobody is perfect.”
The most serious threats to judicial fairness and efficiency were
identified as (a) lack of moral courage (34%), (b) political power (26.2%),
and (c) money (23%). All of these indicate potential issues with judicial
independence.
Of particular interest is the impact of the legal tradition of issuing
judgments in the name of the king. As rule of law commentators have long
argued, culture and legal traditions play a very large role in establishing the
rule of law, in terms of influencing both the behavior of legal actors and the
perceptions of the public.76 Overwhelmingly, respondents (87.5%) felt that
this tradition has an impact on judicial independence, with 75% believing it
has at least a moderate impact, and 56.3% believing it has “very much”
impact. What is not clear from the survey is what that impact on judicial
independence is. At first blush, it can be salutary, as this couching of a
judicial decision invokes royal authority and invokes the respect afforded
by the culture to the king. This could bolster the independence of the
judiciary, to rise above petty politics, ignore efforts to flex political muscle,
and act with the dignity that the monarchy bestows upon its judges. On the
other hand, invocation of the name of the king may foster the perception
that the judiciary derives its authority from a higher power, and is therefore
not subject to the checks and balances of the executive and legislative
branches. An overly emboldened judiciary may become a political player in
its own right, overstepping the bounds normally set for the judicial branch
76
David Pimentel, Culture and the Rule of Law: Cautions for ConstitutionMaking, 37 FORDHAM INT’L L.J. ONLINE 101, 102 (2014) (“[S]cholars of comparative
law … study how the varying legal systems around the world are shaped by the legal
tradition of each place. A ‘tradition’ runs far deeper than a ‘system,’ of course.
Systems can be changed with simple constitutional, or even legislative, reform. But a
tradition is the product of history, of generations of experience with legal norms and
dispute resolution mechanisms.” (citations omitted)); RACHEL KLEINFELD,
ADVANCING THE RULE OF LAW ABROAD, 98-107 (2012).
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THAILAND’S JUDICIARY
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of government, and misusing its independence to pursue a political agenda
of its own.
Concerns along these lines were raised in Turkey, where the judiciary
was sometimes perceived to be pursuing its own political agenda—one of
extremely strict national secularism—and frustrating the political branches
in their efforts to give greater respect to the free exercise of religion.77 Of
course, the judiciary is supposed to be the non-political branch of
government, and because it has no particular constituency other than
Justice herself, it cannot be carrying out any political mandate beyond that
of simply doing justice in the cases that come before it, and enforcing the
mandates of the law.78 In the end, the Turkish Constitution was amended to
restructure the judiciary and dismantle the leadership of the third branch
that was pursuing this agenda.79
There is insufficient information to conclude whether the judiciary is
playing such a role in Thailand as well. If so—and the survey responses
suggest that this could be the case—the judicial independence pendulum
may need to swing back a bit, reining in courts and judges who may be
overreaching their role and authority. In such a case, accountability
mechanisms may need to be crafted to address such issues, but until there’s
a constitution in place, it is hard to say what the courts’ role and authority
will be, and therefore difficult to find or even define what may constitute
judicial overreaching.
CONCLUSION
These are difficult times for the Thai judicial system and the Thai
people. As long as the country is without a constitution, the courts will be
seriously handicapped in playing their critical roles of providing fair and
impartial adjudication, and of protecting human and other legal rights.
Judicial independence and accountability are key issues to be considered as
the Constitution is drafted, to ensure that the Thai judiciary of the future
will be equipped to function effectively.
77
Mustafa Akyol, The next battle for the Turkish judiciary, AL MONITOR (Sept. 2,
2014) http://www.al-monitor.com/pulse/originals/2014/09/turkey-judiciary-battle-gulenakp.html#.
78
Those in the Turkish judiciary targeted by the constitutional amendments would
insist, of course, that the national secularism (Kemalism) they defended and enforced was
called for in the Turkish constitution, and that they were simply enforcing the law.
79
The government pushed through constitutional amendments in 2010 designed to
“democratize” the judiciary, and effect a moderation of the courts’ approach to enforced
secularism. Id.
30
INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
In considering these issues, it is important to keep in mind that
independence and accountability in the judiciary are simply means to an
end, and that the ultimate objective is fair and impartial justice. The most
important factor in producing that is in the character of the judges
themselves: the courage they demonstrate in doing justice even when it is
unpopular with powerful people, and the integrity that they show to resist
corruption and remain true to core principles. When judges demonstrate
such qualities, they should be supported and protected. And the selection
of new judges should screen candidates for these qualities in particular.
When the constitution is in force, when checks and balances on
political power are in place, the stage will be set for a calming of the
turmoil in Thailand. But that can only happen if the judiciary is sufficiently
empowered and independent to play that constitutional role while showing
both sufficient integrity to avoid corruption and sufficient restraint not to
overreach into the political realm. In other words, the individual judges
must exhibit both courage and integrity in their rulings. The structure of the
judiciary—the mechanisms for protecting the judges, and for policing
them—will be important in facilitating that result, restoring public
confidence in the legal and political system, and ultimately strengthening
the rule of law in the Kingdom of Thailand.
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THAILAND’S JUDICIARY
31
ANNEX A
VOTING RESULTS FOR THE SEMINAR ON BALANCING
JUDICIAL INDEPENDENCE & ACCOUNTABILITY
Thailand Institute of Justice
Landmark Hotel, Bangkok, Thailand
September 29, 2015
(done with anonymous clickers)
First Session: Voting to explore our seminar participants’ opinions
on judicial independence
1. From which organization do you come? (65 votes)
a. Court
20.0%
b. Office of the Attorney General - Public Prosecutor
15.4%
Office, Police, Department of Special Investigation (DSI)
c. Ministry of Justice
9.2%
d. Other Government Agencies
9.2%
e. NGOs / Independent Organizations
6.2%
f. Academic / Professor
6.2%
g. Collegian / Student
9.2%
h. Normal People
21.5%
i. Special People
3.1%
2. How will you evaluate your level of knowledge about judicial
independence and accountability before the seminar? (79 votes)
a. Very much
3.8%
b. So so
51.9%
c. Very little
44.3%
3. What is your opinion on judicial independence in Thailand? (83
votes)
a. Properly independence
41.0%
b. Thai judiciary system has too much independence.
49.4%
c. Thai judiciary system lacks independence.
9.6%
4. In your opinion, which of the following is the greatest concern for
the Thai judiciary? (81 votes)
a. Lack of good management
13.4%
b. Lack of public confidence
6.1%
c. Lack of Transparency
9.8%
d. Lack of external accountability
22.0%
e. Lack of interaction/involvement with the people
11.0%
f. Intervention by political power
19.5%
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INDEPENDENCE AND ACCOUNTABILITY
[22-Feb-2016
g. Intervention by certain kind of special power/influence 14.6%
h. There is no problem with Thai judiciary system.
Problems in the Thai criminal justice system are usually
3.7%
from other state agencies such as police, public
prosecutors, independent entities, etc.
5. In your opinion, which court is most trusted/reliable? (81 votes)
a. Court of Justice, which include Criminal Court, Civil
Court, District Court, Labor Court, Juvenile and Family 27.2%
Court
b. The Administrative Court
14.8%
c. The Constitutional Court
6.2%
80
d. Kaifeng Court
22.2%
e. Not sure
29.6%
6. As an ordinary citizen, do you feel you have ownership of your
judiciary? In other words, do you really care if your judiciary system is
in good shape or not? (83 votes)
a. I very much care if our Thai judiciary is in good shape
because they have always been the people’s last reliable
28.9%
resource. We believe in them since we can always depend
on them.
b. So so
22.9%
c. No because they have no interaction/involvement with
the people. Therefore, they do not really understand how 48.2%
we feel.
d. No comment / I have no interest in Thai judiciary
0.0%
system
7. Considering the topic of this seminar, do you think there’s any
contradiction between judicial independence and judicial
accountability? (83 votes)
a. Definitely yes, because you could only have one or the
2.4%
other.
b. No, I think we can strike the balance between the two. 73.5%
c. Not sure, I don’t know much about judicial
24.1%
independence and accountability.
Second Session: Voting to explore our seminar participants’
opinion on judicial accountability
80
One of the most famous courts in the internationally well-known Chinese
historical literature, Bāo Zhěng. This court is fictitious and has nothing to do with the
real justice system in the modern world, but if a significant number of people vote for
this one there is then an implication on the participants’ perception of Thai courts.
22-Feb-2016]
THAILAND’S JUDICIARY
33
1. In your perception, what is the present level of judicial accountability
in Thailand? (43 votes)
a.
Too much accountability; it affects judicial
6.7%
independence.
b. Too little judicial inspection; the Thai judicial is
51.1%
seemingly untouchable now.
c. Proper
26.7%
d. Not sure.
15.6%
2. You think scope of role of the Thai Judicial Commission is… (43
votes)
a. Too broad
12.2%
b. Too little
28.6%
c. Proper
30.6%
d. Not sure
28.6%
3. Do you agree with the restructuring of the Office of the Judicial
Commission by having outsiders as members of the Commission as
well? (55 votes)
a. Agreed
58.0%
b. Not agreed
30.0%
c. Not sure
12.0%
4. Do you think broad application/interpretation of the offence of
contempt of court would cause any effect to judicial accountability? (55
votes)
a. Not sure
7.3%
b. No
18.2%
c. Yes because it may prevent criticism on court ruling
74.5%
that may be faulty
5. Do you think it is possible for the Supreme Court to make a
judgement by mistake and not exactly according to the applicable law?
(58 votes)
a. Yes, nobody is perfect
93.1%
b. No, since all judges are neutral and very [sic] at what
6.9%
they are doing.
6. Do you think the jury system has any conceptual/ideological linkage
to the issue of judicial accountability? (59 votes)
a. No
11.9%
b. Yes, directly.
42.4%
c. Somehow yes, but quite indirectly.
32.2%
d. I don’t know the answer because I don’t know what
13.6%
jury system is.
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[22-Feb-2016
Third Session: Voting to explore our seminar participants’ opinion
on what could be other relevant crucial factors for the judicial role
1. Which of the following factor you think would affect judicial
fairness and neutrality the most? (61 votes)
a. Political power
26.2%
b. Money
23.0%
c. Certain kind of special power/influence
9.8%
d. Public pressure
6.6%
e. Lack of judicial moral courage
34.4%
2. What is your opinion on the judicial role in the past Thai political
crisis? (62 votes)
a. They have been involved creatively by helping to find
11.3%
solutions for society.
b. Their involvement might seem biased to some people. 30.6%
c. It must be considered separately on the role of each
court whether it’s Court of Justice, Constitutional Court or 53.2%
Administrative Court
d. The judiciary stayed very neutral. It’s actually the
society and politics that tried to involve them.
4.8%
3. When the judiciary has a high level of independence but not enough
internal or external accountability, how would it affect the judicial role
and power? (62 votes)
a. Such a situation will yield negative impact to the
judicial role and power, because it opens it to abuse of 41.9%
power and misconduct.
b. Such a situation will yield positive impact to the
judicial role and power, because the judiciary will be 37.1%
protected against bad influences.
c. There should be no impact, because judges normally
know how they should behave and perform their duties 11.3%
according to their morality and code of conduct.
d. Not sure
9.7%
4. Do you think the traditional perception that the Court gives
judgements in the name of the King has any relation to judicial
independence in Thailand or not? (64 votes)
a. Yes, very much.
56.3%
b. Yes, moderately.
18.8%
c. Yes, but very little.
12.5%
d. Not sure.
12.5%
5. Do you think if Thai judicial system is substantially under checks by
external mechanisms and truly accountable to the people, it would
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THAILAND’S JUDICIARY
35
enhance the fairness and neutrality of the judicial power or not?
a. Definitely yes
54.0%
b. Maybe just a little.
19.0%
c. No / I don’t think so.
6.3%
d. I think Thai judicial system is already fair and neutral. 19.0%
e. Not sure.
1.6%